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Ninth Circuit:
Banning Probationer’s Use of Cellphone Without Permission Is Reasonable
Man Had Made Relentless Harassing Phone Calls to Woman
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals on Friday rejected the contention of a man who was convicted of stalking that the sentencing judge went too far in setting as a condition of supervised release following his term in prison that he not use a cellphone without permission of his probation officer.
Challenging that special condition, imposed by District Court Judge Dale A. Drozd, is Ivan Isho. He was convicted in 2022 of two counts of wire fraud and one count of impersonating a federal officer, in addition to stalking and was sentenced to five years in prison but was released last year.
Isho had engaged an affair with a married woman, broke up with her, then made harassing telephone calls to her and her husband, sometimes hundreds of times a day. The woman is variously identified as “Nancy” or “N.M.”
Contentions in Brief
In his opening brief on appeal, drafted by San Diego attorney Kristi A. Hughes, Isho argued that the condition, in essence, means a total ban on cellphone use since it is not known whether permission would ever be granted. He said:
“[T]this overbroad condition burdens substantially more speech than is necessary to protect Nancy and her husband from the risk that Mr. Isho would contact them in the future. It is not narrowly tailored, and infringes Mr. Isho’s ability and right to access the internet and receive and exchange ideas. The Court should find it infringes Mr. Isho’s First Amendment right to speech.”
Isho contended:
“It is beyond debate that cell phones are ubiquitous….
“It is also beyond debate that the vast majority of those cell phones are now internet-enabled….Cell phones allow people to access the internet-connected apps that many rely on for daily life—MuniMobile, Uber, and Lyft for their daily commute, Venmo or Square to collect payments for their small business, GrubHub to order dinner, Zoom to communicate with their work colleagues or doctor, Instagram to keep up with family and friends, or Peloton to work out.”
The appellant added:
“Mr. Isho will not be able to use a cell phone during the three years he is under supervision, meaning he cannot use Google maps to get directions, listen to a podcast, or bank online. He will not be able to use his cell phone to take a picture of a sunset, track his steps on an iPhone, or read an online newspaper.”
He said it also means that Isho will be unable to resume his former employment as an Uber driver.
Government’s Position
The government responded:
“Isho used his cellular phone as his primary tool to terrorize N.M. The close nexus between the condition and the count of conviction is readily apparent. Isho is not restricted in his Internet usage or use of a landline telephone, and he will not be prevented from participating in modern life. The cellular restriction is reasonable and tailored to address Isho’s stalking conduct comprising 12,000 unwanted calls to his victim over the course of two years.”
The Ninth Circuit agreed with the government. A three-judge panel said in a memorandum opinion:
“The condition of supervised release was neither overly broad nor violative of Isho’s First Amendment rights. Isho used his cell phone to intimidate and contact N.M. hundreds of times a day; the prohibition therefore has a nexus with the underlying conviction.”
It added:
“Isho can still exercise his First Amendment rights by using a landline, desktop, or laptop to access the internet and communicate with others. That the condition of supervised release restricts Isho’s freedom to some degree by forbidding him from using the most convenient way to use the internet or contact people does not render it unreasonable.” The Ninth Circuit also rejected his contention that Drozd incorrectly instructed the jury on the mental element of stalking.
The case is United States v. Isho, 22-10150.
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